A district court in the US has issued a preliminary injunction, stopping the USCIS from enforcing an adverse visa policy which retroactively computes the ‘unlawful presence’ of foreign students as well as members of their family.

The ruling by the court, until the lawsuit is disposed of, is remarkable because being an ‘unlawful presence’ offender can get one banned from entering the US for a specified period of thing.

This development is good news for two Indians who are both students in the US.

Re-entry bans could be for as long as ten years

Any foreigner in the US who overstays their authorized period of time — usually 180 days — before leaving the country would be barred from entering the country for 3 years. Those who overstay unlawfully for more than a year will get a ten-year ban from entering the country.

The order from the district court on May 3 is in relation to a lawsuit filed by a good number of colleges, one of which was the Guilford College.

The subject of the lawsuit is a policy memorandum which the USCIS issued and which became effective on August 9, 2018. The revised policy stated that international students will immediately be guilty of ‘unlawful presence’ in the US a day after they violate their student visa. It wouldn’t matter in this case if their student visa has not yet expired.

Violating the student status could not be totally dependent on the student, as something as simple as failing to update a student’s designated school officer or a clerical error made by the DSO while entering the student’s information into the SEVIS system, could implicate a student.

The former policy only began to count unlawful presence for international students only when their status violation had been ascertained by an immigration judge or the USCIS.

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